In re Brown

• Decision Date: 05 July 1917
• Citation: 228 Mass. 31,116 N.E. 897
• Parties: In re BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 31

116 N.E. 897

In re BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

July 5, 1917.

Appeal from Superior Court, Suffolk County.

Proceeding under the Workmen's Compensation Act by Solomon Brown, employé, to recover compensation from Aberthaw Construction Company, employer, and the Contractors' Mutual Liability Insurance Company, insurer. From decree awarding compensation, the insurer appeals. Affirmed.

Jos. Abbott, of Boston, for employé.

Norman F. Hesseltine and J. Frank Scannell, both of Boston, for insurer.

LORING, J.

The employé here in question worked for the Aberthaw Construction Company in the yard of the Fore River Shipyards. When he woke up on the morning of October 18, 1915, he found that he had a swelling in his right groin and that he was unable to work. He consulted his doctor and was advised that he had ruptured himself, and that an operation was necessary. On his telling him that he was a day-laborer and had a family to support the doctor told him that he could try using a truss. Thereupon he bought a truss and worked on the three following days, having arranged with the foreman (whom he told of the situation) for lighter work. On the 22d he reported his situation to the timekeeper of the construction company. The timekeeper took him to Dr. Blanchard, the doctor at the hospital of the Fore River Shipyards. Dr. Blanchard examined him, and he also advised him that he had a rupture. On the same day the timekeeper, acting for the construction company, made a report of the injury to the Industrial Accident Board. In this report he stated that:

‘He [the employé] reptured himself about three weeks ago and just began to feel the effects of it the last few days.’

Opposite E 2 of the blank calling for ‘Nature of injury, as near as possible,’ he wrote in the word ‘Rupture,’ and opposite E 3, calling for ‘Attending physician or hospital where sent, name and address,’ he filled in, ‘Dr. Blanchard, Howard Ave., Quincy.’ On November 17th he was operated on at the Massachusetts General Hospital for indirect inguinal hernia. Thereafter he was incapacitated for work until March 17, 1916. When he found the swelling the employé remembered that on or about October 1st, he was assisting in carrying a piece of timber weighing some 700 pounds, and that at that time he and another man carried one side of the stick and six men carried the other side. Although at the time he did not think that he was hurt thereby when he found he had the rupture he ‘remembered that when he got through with that work’ ‘he felt all tired out; he did not feel a pain, but felt kind of weak; the weakness passed away, and he did not mind any more about it.’ The doctors testified that a strain of that kind would be likely to produce an indirect inguinal hernia. They also testified that hernia of that kind would not ensue directly upon the strain but would be likely to result in the course of two or three weeks. The Industrial Accident Board made a finding in accordance with the above evidence and awarded the employ ¸onehalf of his weekly wages from November 2, 1915, to March 17, 1916, amounting to the sum of $194.29 and a decree to that effect was made by the superior court. From that decree the insurer took the appeal which is now before us.

The insurer has conceded that the findings of the Industrial Accident Board were warranted, but it has contended that the plaintiff is barred because he failed to give notice of the accident as required by St. 1911, c. 751, pt. 2, § 15. To avoid this defense the employé has relied upon the fact that the subscriber ‘had knowledge of the injury,’ and the Industrial Accident Board found that it did.

1. At the hearing before the board the insurer contended that the evidence did not warrant the finding that the subscriber ‘had knowledge of the injury,’ and therefore that the five requests asked for by it stated below ¹ should have been given. In support of this contention the learned counsel for the insurer has argued at great length that where the employé gives the employer notice of an injury by word of mouth, it cannot be said that the employer has knowledge of the injury And, further, that a report of an injury by the employer based upon an oral notice of it given by the employé does not make out knowledge of the injury on the part of the employer. Of course that is so. Of course it is true that oral notice is not knowledge. Also it is of course true that in a case where all that is stated by the employer in a report to the Industrial Accident Board is that he had had oral notice of an injury it cannot be said that the report makes out knowledge on the part of the employer. In the argument made by him, the insurer's counsel has overlooked the fact that by section 18 of part 3 of the Workmen's Compensation Act it is made they duty of the employer to ‘keep a record of all injuries' and ‘within forty-eight hours * * * after the occurrence of an injury a report thereof should be made in writing to the Industrial Accident Board.’ The duty of the employer under this section is to make an investigation, find out the facts and to ‘keep a record of’ the facts, and, having found out what the facts are, then within 48 hours make a report thereof to the Industrial Accident Board. The employer's duty is not to make a report of claims of injuries, but to find out and report the facts of each injury.

In the report in the case at bar the subscriber (the Aberthaw Construction Company) performed its duty. It is reported as a fact that ‘he [the petitioner] reptured himself about three weeks ago and just began to feel the effects of it the last few days.’ that ‘he [the petitioner] ruptured himself in the case at bar that this statement of the employer that ‘he [the petitioner] ruptured himself about three weeks ago’ was a statement of fact founded upon an investigation, and was not a statement that the petitioner claimed that he had ruptured himself. The timekeeper (who acted for the construction company in making the report which it was bound to make under part 3, § 18) testified:

‘He believes the doctor [referring to Dr. Blanchard, the physician of the Fore River Shipyards Hospital who was the second doctor to examine the petitioner] said Brown had a rupture.’

We do not intimate that it was necessary for the plaintiff to produce affirmative evidence that the report of the employer was...